Illustrating your answer with case law, assess the extent to which the exercise of the Royal Prerogative is controlled by the courts. Should the exercise of the royal prerogative be subject to more stringent control by parliament or the courts?

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Illustrating your answer with case law, assess the extent to which the exercise of the Royal Prerogative is controlled by the courts. Should the exercise of the royal prerogative be subject to more stringent control by parliament or the courts?

In this essay I will be examining how far the Royal Prerogative is controlled by the courts after it has been exercised by the executive. I will then discuss whether the prerogative should be controlled by the courts or parliament, and how strict this should be.

The royal prerogatives are powers and privileges recognized in common law as belonging to the Crown sometimes referred to as residuary discretionary powers. However, most prerogative acts are performed by the government of the day in the name of the crown. As by prerogative the Crown is immune from prosecution

Certain prerogatives are only performed by the crown on the prime minister’s advice, such as the dissolution of parliament. Some prerogatives such as powers to appoint and award honours are performed by the Crown, who will also conduct the relevant ceremonies, but decisions as to who will be honoured are made on the advice given by the government.

Both Dicey and Blackstone tried to give their interpretation of a prerogative. Dicey argued that, ‘an act that can be performed lawfully without an Act of Parliament, is done in virtue of this prerogative’. Blackstone’s interpretation was that a prerogative was ‘a special pre-eminence that the king hath over and above all other persons’. Dicey was able to put his interpretation into practice, as most prerogatives are now exercised by the government.

Having established some of the different interpretations that exist, it is clear that these powers are indeed ‘special’, but that does not mean to say that they may override any conflicting interests. In such cases, courts have an important role to play, certain prerogatives will be susceptible to judicial review, and here courts must decide whose interests to preserve. In Council of Service Unions v Minister of State for Civil Service, the government terminated the rights of the workers at GCHQ to belong to a union. The union challenged this and made an application for judicial review. At the court of first instance their argument was favoured, but the government appealed and then both the Court of Appeal and the House of Lords found in favour of the government. The government had right to terminate these rights by way of prerogative, and they argued that workers involved in matters of national security maybe denied such rights. The GCHQ case, established two significant principles, firstly, the royal prerogative was as reviewable as powers exercised under statute. Secondly, courts cannot review prerogatives relating to public policy, this was a matter for ministers. It is clear that the House of Lords wanted to draw a clear line as to the extent that prerogatives are reviewed by courts, and also attempt to keep in line with the doctrine of separation of powers.

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In Attorney General v De Keyser’s Royal Hotel 1920, the House of Lords asserted that a statute will prevail over a prerogative. The House of Lords rejected the government’s argument, saying, ‘once a statute had been enacted the prerogative will fall into ‘abeyance’ for the duration of the life of the statute’.  So here the courts have gone to the extent to hold a statute in authority to a prerogative power. This was affirmed in Laker Airways v Department of Trade 1977. The court agreed with the appellant’s claim that the government had acted ultra vires, as its right ...

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A good essay; the student does as asked. The student may have wished to have developed Dicey's theory throughout, to create a "theme" to the essay.